STATE v. In re Personal Restraint Petition of Kevin Lawrence Hendrickson, Petitioner. (2007)

PUBLISHED IN PART OPINION

¶ 1 Kevin Hendrickson is a tow truck driver who stored financial information, some belonging to clients, in a stolen trailer.   He appeals his convictions for three counts of second degree identity theft on grounds of improper searches and arrest, ineffective assistance of counsel, insufficient evidence, and several other issues.   Because his conviction for Count 16 rests solely on highly prejudicial hearsay testimony, we reverse his conviction for identity theft against Don Noe, affirm his convictions on Counts 12 and 18 in all other respects, and remand to the trial court for further proceedings.

FACTS

¶ 2 While driving through Tacoma, Michael Brutsche spotted his grandfather's trailer, which had been stolen months before, in an unfenced used car lot.   He and his cousin, Lee Farro, pulled into the lot and called his grandfather and 911.   The two waited for Michael Brutsche's grandfather, Leo Brutsche, and Officer William Budinich to arrive.

¶ 3 When Officer Budinich arrived, Michael Brutsche and Farro told him that, while they were waiting, they saw Hendrickson approach the trailer, put a box by it, and try to open a locked door on the trailer.   They said that when Hendrickson saw that he was being watched, he dropped a set of keys into the box and left.

¶ 4 Officer Budinich verified that the trailer rightfully belonged to Leo Brutsche and had been stolen.   He arrested Hendrickson, took a keychain from Hendrickson's belt loop, and used the keys to open several locks on the trailer.   Leo Brutsche demanded that Budinich open the trailer so that he could see if a concrete cutter that was stolen with the trailer was still inside.

¶ 5 Officer Budinich conducted a quick sweep of the trailer's interior to ensure that no people or dangerous conditions, such as a portable methamphetamine laboratory, were present.   He noted that there was no safety risk and that Leo Brutsche's concrete cutter was no longer in his trailer.   During the cursory search for the cement cutter, Officer Budinich also saw that the trailer contained a box of vehicle identification number (VIN) plates, papers, and a file cabinet.   Officer Budinich impounded the trailer and obtained a warrant to search it.   Police searched the trailer and found numerous documents containing financial information.

¶ 6 The State charged Hendrickson with first degree possession of stolen property for the trailer and 16 counts of second degree identity theft.   Before trial, Hendrickson challenged Officer Budinich's initial search of the trailer and the search warrant.   He also objected to admitting statements he made to police, but the trial court ruled that all were lawful.

¶ 7 At the close of its case, the State dismissed five of the identity theft counts because key witnesses were unavailable.   Hendrickson urged the trial court to direct a verdict in his favor on all counts.   The trial court dismissed eight of the remaining identity theft counts because the State failed to prove that Hendrickson possessed the financial information for illegal purposes.¹ The trial court then allowed four charges to go to a jury:  first degree possession of stolen property (Count 1);  possession of Jaime Salazar-Guerrero's identity information (Count 12);  possession of Noe's social security card (Count 16);  and possession of a forged social security card with the number of an unknown seven-year-old Florida boy and the name of a different person (Count 18).

¶ 8 The jury did not reach a unanimous verdict on the charge of possession of stolen property, Count 1, and the State dismissed that charge without prejudice.   But the jury convicted Hendrickson on the three remaining counts of identity theft.

¶ 9 This appeal requires us to review:  (1) the effectiveness of Hendrickson's counsel;  (2) Hendrickson's arrest;  (3) the search warrant;  (4) sufficiency of the evidence;  (5) issues raised in Hendrickson's statement of additional grounds (SAG); ²  and (6) issues raised in Hendrickson's personal restraint petition (PRP), which we consolidated with his direct appeal.   In the published portion of this opinion, we reverse for ineffective assistance of counsel.   But we analyze the remaining issues without publication because we resolve those issues by following well-established legal principles that have no precedential value.  RCW 2.06.040;  State v. Fitzpatrick, 5 Wash.App. 661, 669, 491 P.2d 262 (1971), review denied, 80 Wash.2d 1003 (1972).

ANALYSIS

Ineffective Assistance of Counsel

¶ 10 Hendrickson urges that we reverse his conviction for identity theft of Noe's social security card on the ground of ineffective assistance of counsel.   Hendrickson's counsel did not object to hearsay testimony by a criminal investigator that Noe lost his card and that no one had permission to use it.   This key testimony is inadmissible hearsay and barred under Crawford,³ competent counsel would have objected, and Hendrickson suffered prejudice.   Accordingly, we reverse this conviction.

¶ 11 Joe Rogers, a Social Security Administration special agent, testified that he conducts criminal investigations relating to identity theft and misuse of social security cards.   He investigated the social security cards “in relationship to the case involving State v. Kevin Hendrickson,” apparently at police request.   2 Report of Proceedings (RP) at 67.   During trial, Special Agent Rogers testified as follows:

[State]:  ․ Can you please tell the jurors whether you had any opportunity to attempt to contact the owner of that card, Don Noe?

A I did.

Q And what did you do then?

A I contacted Mr. Noe and spoke to him on two occasions, primarily to ask about his social security card, whether he ever lost it, a little bit of history about it.   Mr. Noe explained to me that he was attending Evergreen State College in the Olympia area and sometime in the Spring of 2004, he wasn't sure of the exact date, he did lose his card.   He lost his wallet somewhere around the campus and hadn't seen it since.   In the fall of 2004, he applied for and received a replacement social security card.

Q And did you ask him whether anyone had permission to have his social security card?

A Yes, I did.

Q And what was his response?

A He stated to me that nobody had his permission to have his social security card, possess it.

2 RP at 68-69.   Hendrickson's attorney did not object.   Hendrickson now claims this failure to object constituted ineffective assistance of counsel.

¶ 12 To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced him.  State v. Thomas, 109 Wash.2d 222, 225, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).   Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

 ¶ 13 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  ER 801(c).  These statements were hearsay and were offered to prove a material fact:  that Noe did not consent to another person possessing or using his social security card.

 ¶ 14 The State asserts that the testimony fits into the business or government records exceptions to the hearsay rule and is admissible.   But the State did not introduce a business record or information contained in a public record but instead asked Rogers to testify from memory about a conversation he had during his criminal investigation.   Thus, the testimony is clearly hearsay and inadmissible under the rules of evidence.

 ¶ 15 In this case, admitting Rogers's testimony about Noe's statements violated the confrontation clause.   The confrontation clause prohibits the admission of testimonial hearsay unless the defendant has an opportunity to cross-examine the declarant.  State v. Shafer, 156 Wash.2d 381, 388, 128 P.3d 87, cert. denied, 549 U.S. 1019, 127 S.Ct. 553, 166 L.Ed.2d 409 (2006) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).   A statement is testimonial if a reasonable person in the declarant's position would anticipate that his statement would be used against the accused in investigating or prosecuting a crime.  Shafer, 156 Wash.2d at 389, 128 P.3d 87.   Rogers is a government agent who was conducting a criminal investigation when he questioned Noe, so the hearsay was testimonial.   And Hendrickson did not have the opportunity to cross-examine Noe because he did not testify.  Crawford bars this testimony.

 ¶ 16 Hendrickson's attorney failed to object to this testimony, which was crucial to the State's case because it was the only evidence linking the social security card, Exhibit 1, to the geographic region where Hendrickson lived and was the only evidence that Hendrickson did not have a valid reason to possess the card.   We can see no tactical reason for defense counsel's failure to object.   And there is a reasonable probability that without this evidence Hendrickson would have been acquitted on this charge.   We reverse and remand for retrial of this conviction.⁴

¶ 17 We analyze the remaining issues without publication because we resolve those issues by following well-established legal principles that have no precedential value.  RCW 2.06.040;  Fitzpatrick, 5 Wash.App. at 669, 491 P.2d 262.   We affirm on those grounds.

¶ 18 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Arrest

¶ 19 Hendrickson argues that Officer Budinich did not have probable cause to arrest him and, therefore, the trial court should have suppressed the evidence uncovered due to his arrest.   But Hendrickson mischaracterizes the evidence, which establishes probable cause that Hendrickson possessed stolen property in violation of RCW 9A.56.140(1).

¶ 20 Once a trial court establishes the facts, we review de novo the determination of whether those facts constitute probable cause.   See In re Det. of Petersen, 145 Wash.2d 789, 799-800, 42 P.3d 952 (2002);  State v. Nusbaum, 126 Wash.App. 160, 166-67, 107 P.3d 768 (2005).   A police officer has authority to arrest a person without a warrant when there is probable cause to believe that the person committed a felony.   Former RCW 10.31.100 (2000).   “Probable cause exists when the arresting officer is aware of facts or circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed.”  State v. Gaddy, 152 Wash.2d 64, 70, 93 P.3d 872 (2004) (emphasis omitted).

¶ 21 Hendrickson argues that Officer Budinich arrested him “based solely on the fact that Mr. Hendrickson had been seen walking up to the stolen trailer and placing a box on the ground next to the trailer.”   Br. of Appellant at 25.   The record belies this claim.   The evidence presented at Hendrickson's suppression hearing established that:  (1) Hendrickson walked toward the trailer with a box and tried to unlock the trailer's side door;  (2) when Hendrickson saw that Michael Brutsche and Farro were watching him, he backed away and left the box and key near the trailer, evincing guilty knowledge;  (3) part of the trailer's VIN had been scratched off and its licensing tabs were expired;  (4) the trailer was chained and locked and located in a different city from where it was stolen;  (5) the trailer was quite large and had been expensively customized by its rightful owner, Leo Brutsche;  and (6) Officer Budinich confirmed that the trailer was stolen property by checking the police report and comparing the VIN number with Leo Brutsche's vehicle registration.

¶ 22 These facts are sufficient to cause a reasonable officer to believe that Hendrickson knowingly possessed a stolen trailer worth over $1,500 and withheld or appropriated the trailer for use by a person other than Leo Brutsche.   RCW 9A.56.140-.150;  State v. Thomas, 150 Wash.2d 821, 875, 83 P.3d 970 (2004).

¶ 23 In his SAG, Hendrickson also alleges that his arrest was premised on an erroneous arrest warrant for a crime committed by a man who stole his identity.   But Officer Budinich did not discover that arrest warrant until after he properly arrested Hendrickson for possessing stolen property.   The trial court did not err in ruling that Budinich lawfully arrested Hendrickson.

Search Warrant

¶ 24 Hendrickson next asserts that the trial court erred by admitting evidence seized by the police under a defective search warrant.   In his direct appeal, he contends that the warrant application contained insufficient facts to support a finding of probable cause.   And in his SAG, he adds that the warrant application contained false information about his criminal history because an identity thief was arrested and convicted while impersonating Hendrickson.

¶ 25 We review conclusions of law in an order pertaining to evidence suppression de novo.  State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).   On appeal, Hendrickson challenges only the legal conclusion that probable cause supported the search warrant, so we review that conclusion de novo.

¶ 26 A search warrant may issue only upon a determination of probable cause.   State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999).   Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched.  Thein, 138 Wash.2d at 140, 977 P.2d 582.   Accordingly, “probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.”  Thein, 138 Wash.2d at 140, 977 P.2d 582 (quoting State v. Goble, 88 Wash.App. 503, 509, 945 P.2d 263 (1997)).

A. False Information

¶ 27 The search warrant affidavit contains the following information:

It was later revealed at the jail that Hendrickson's true name is Robert Christensen.   Christensen had a warrant for two counts of possession of stolen property.

The affiant checked criminal history on Robert Christensen and found five arrests for possession of stolen property in addition to arrests for theft, forgery[,] taking a motor vehicle, and trafficking in stolen property.

Ex. 2.

¶ 28 In his SAG and PRP, Hendrickson insists that he is not Christensen but is the victim of Christensen's impersonation of his identity.   A court must void a search warrant if the defendant establishes that the supporting affidavit contains false information, critical to the determination of probable cause, when the evidence demonstrates that the false information was submitted knowingly and intelligently or with reckless disregard for the truth. State v. Selander, 65 Wash.App. 134, 138, 827 P.2d 1090 (1992) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).   But Hendrickson did not present this argument to the trial court, does not support his claim on appeal,5 and has not demonstrated that Officer Budinich submitted false information “knowingly and intelligently or with reckless disregard for the truth.”  Selander, 65 Wash.App. at 138, 827 P.2d 1090.

¶ 29 Even if the police obtained the incorrect criminal history,6 the mistake was not “critical to the determination of probable cause” and did not affect the warrant's validity.  Selander, 65 Wash.App. at 138, 827 P.2d 1090.

B. Probable Cause

¶ 30 Hendrickson also claims that the affidavit did not support a finding of probable cause to search the trailer's contents. The affidavit requested a search for (1) property belonging to Leo Brutsche;  (2) documents that may show that Hendrickson had dominion and control of the trailer;  and (3) any other item determined to be stolen property when the warrant was executed.   The warrant authorized police to search for these items.

¶ 31 The affidavit contained facts sufficient to support probable cause to issue a search warrant for the trailer.   We read the statement of probable cause in support of a search warrant request as a whole, in a commonsense, nontechnical manner, and we resolve all doubts in favor of the warrant's validity.  State v. Vickers, 148 Wash.2d 91, 108-09, 59 P.3d 58 (2002).   The following facts support probable cause:  (1) the trailer was stolen property;  (2) Hendrickson put tools by the trailer;  (3) Hendrickson first said he did not store things in the trailer, but then admitted that he did;  (4) Hendrickson first said he did not have keys to the trailer's locks, but then admitted that he did;  (5) some of the keys on Hendrickson's belt loop fit the trailer's locks;  (6) when the trailer was stolen, its contents were also stolen;  and (7) according to Officer Budinich's best knowledge, Hendrickson had multiple arrests for property crimes, including forgery, theft, taking a motor vehicle without permission, and trafficking in stolen property. These facts support probable cause to believe that Hendrickson may have stored the following items in Leo Brutsche's trailer:  (1) Leo Brutsche's property;  (2) documents showing that Hendrickson had dominion and control of the trailer;  and (3) other stolen property.   The warrant was valid.

¶ 32 Further, a search of the trailer was justified even if the police had not obtained a search warrant.   The trailer's true owner, Leo Brutsche, consented to the search.   Consent is an exception to the warrant requirement.  State v. Hendrickson, 129 Wash.2d 61, 71, 917 P.2d 563 (1996).   And a true owner's consent overcomes the protests of a person who is unlawfully using stolen property to store unlawfully obtained financial and identity information.   Moreover, police would have lawfully searched the trailer after impounding it in order to list the contents.   A routine inventory search is also a recognized exception to the warrant requirement.  Hendrickson, 129 Wash.2d at 74, 917 P.2d 563.   In short, in addition to a valid search warrant, at least two exceptions to the warrant requirement authorized the search.   The trial court properly denied Hendrickson's arguments to suppress the lawfully seized evidence.

Sufficiency Of The Evidence

¶ 33 Hendrickson next argues that the evidence is insufficient to prove that he possessed the identification information “with the intent to commit, or to aid or abet, any crime.”  RCW 9.35.020(1).   We disagree.

¶ 34 Hendrickson urges us to reverse the trial court's denial of his motion to dismiss at the close of the State's case.   But after a verdict, we review the sufficiency of evidence supporting that verdict, not the propriety of the denial of the motion to dismiss.  State v. Jackson, 82 Wash.App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wash.2d 1006, 932 P.2d 644 (1997).   The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 220-21, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it.  State v. Theroff, 25 Wash.App. 590, 593, 608 P.2d 1254, aff'd, 95 Wash.2d 385, 622 P.2d 1240 (1980).   Credibility determinations are for the trier of fact and are not subject to review.  Thomas, 150 Wash.2d at 875, 83 P.3d 970.

¶ 35 A person is guilty of identity theft if he knowingly obtains, possesses, uses, or transfers a means of identification or financial information of another person, living or dead, “with the intent to commit, or to aid or abet, any crime.”  RCW 9.35.020(1).   Specific criminal intent may be inferred from the defendant's conduct where it is “plainly indicated as a matter of logical probability.”  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

¶ 36 Here, the jury could infer intent to commit, aid, or abet a crime with these three financial documents.   Count 12 related to a “profile” of Salazar-Guerrero's financial information.   For that count, the State presented Exhibit 4, a tablet of Hendrickson's hand written notes.   One page of Exhibit 4 contained Salazar-Guerrero's name, address, social security number, wife's name, wife's social security number, and wife's birth date.7  And Salazar-Guerrero testified that his car was almost towed but that he claimed the car before it entered the tow truck operator's possession, thus Hendrickson never had legitimate possession of his financial information, and he testified that someone had unlawfully worked using his social security number.   This evidence supports a finding or inference that Hendrickson's intention for possessing the documents was a criminal intent.

¶ 37 Count 18 related to Hendrickson's possession of a false social security card bearing the name “Rodrigo Velizco” but the number belonged to a seven-year-old Florida boy with a different name.   Clerk's Papers (CP) at 62.   The jury could properly infer criminal intent based on the fact that the card was falsified and could be used to commit social security fraud.   The evidence was sufficient to support these convictions.8

SAG Issues

¶ 38 Hendrickson alleges numerous errors in his SAG. None warrants reversal.

¶ 39 Hendrickson first alleges that the evidence was insufficient to support his identity theft convictions, reasoning that because the jury did not convict him of possession of the stolen trailer, there was insufficient evidence that he had dominion and control over the identity items.   The jury did not acquit Hendrickson of possession of stolen property but, instead, it failed to decide the issue unanimously.   It is unknown whether the jury failed to reach a unanimous decision due to lack of dominion and control or some other reason such as lack of proof that Hendrickson knew the trailer was stolen.   See RCW 9A.56.140(1).   This argument fails.

¶ 40 Second, Hendrickson argues that the police were unlawfully present in the car lot and unlawfully took keys from the box in front of the trailer.   But the trial court correctly ruled that Hendrickson had no expectation of privacy in an open lot with cars for public sale on it.

¶ 41 Third, Hendrickson asserts error because a box, chains, keys, and other physical evidence were not entered into evidence during trial.   But this physical evidence is not required, and Hendrickson does not show that it would alter the outcome of his case.

¶ 42 Fourth, Hendrickson argues that testimonial evidence was required to prove that he intended to commit a crime with the identity documents.   Testimony was not required because the jury may infer this intent from other evidence presented.  Delmarter, 94 Wash.2d at 638, 618 P.2d 99.

¶ 43 Fifth, Hendrickson argues that he suffered malicious prosecution and says, without explanation, that the identity theft statute is void for vagueness.   But these arguments do not inform us of the nature and occurrence of alleged errors and thus are unreviewable.  RAP 10.10.   He also alleges vindictive prosecution because he did not agree to the State's plea bargain.   But the record contains no information about a proposed plea bargain and so we have no basis with which to review this claim.

¶ 44 Sixth, Hendrickson contends that the trial court was required to declare a mistrial on all charges when the jury was unable to reach a verdict on the possession of stolen property count or when the trial court granted a directed verdict on the ground that the jury would infer guilt on the remaining charges from evidence relating to the dismissed charges.   Seventh, Hendrickson alleges that the “to convict” instructions were somehow faulty.   We note that the instructions track the statute and no error is apparent.   The trial court instructed the jury that, “A separate crime is charged in each count.   You must decide each count separately.   Your verdict on one count should not control your verdict on any other count.”   CP at 51.   Juries are presumed to follow a court's instructions.  State v. Johnson, 124 Wash.2d 57, 77, 873 P.2d 514 (1994).   Because the trial court properly instructed the jury that it could convict Hendrickson for each count based solely on the evidence of those counts, no error occurred.

¶ 45 Last, Hendrickson argues that the prosecutor commented on the evidence by stating that he “possessed” the identifications. But Hendrickson fails to show where in the record these alleged comments occurred and we have not found them.   We cannot review this issue because Hendrickson has not told us the nature and occurrence of the alleged errors.  RAP 10.10.

PRP Issues

¶ 46 We also consolidated Hendrickson's PRP, in which he raises the following issues:  (1) insufficient evidence to support the intent element of identity theft;  (2) improper failure to call a mistrial on all charges after the jury was unable to reach a verdict on one count and the trial court directed a verdict on several identity theft counts;  (3) prosecutorial misconduct, ineffective assistance of counsel, and insufficient evidence because the parties did not admit into evidence the box, keys, and chains;  (4) illegal search and seizure of Hendrickson's personal vehicles;  and (5) lack of trial court jurisdiction because insufficient evidence supported his charges.   We deny Hendrickson's petition.

¶ 47 In order to be entitled to relief in a PRP, a petitioner must establish a constitutional error resulting in actual and substantial prejudice or a nonconstitutional error constituting a fundamental defect that inherently results in a complete miscarriage of justice.  In Re Pers. Restraint of Breedlove, 138 Wash.2d 298, 304 n. 1, 979 P.2d 417 (1999) (citing In Re Pers. Restraint of Cook, 114 Wash.2d 802, 811, 812, 792 P.2d 506 (1990)).   Regardless of whether a petitioner bases his challenges on constitutional or nonconstitutional error, he must support his petition with facts or evidence on which his claims of unlawful restraint are based and not solely on conclusory allegations.  Cook, 114 Wash.2d at 813-14, 792 P.2d 506.   He must present evidence that is more than speculation, conjecture, or inadmissible hearsay;  and, if his claimed evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say but must present their affidavits or other corroborative evidence.  In Re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).

¶ 48 We reviewed the first three allegations through Hendrickson's SAG, and he does not offer additional evidence in his PRP. We are unable to review the fourth issue because Hendrickson does not provide any evidence regarding a search of his personal vehicles.   The fifth argument fails because it does not state a cognizable legal argument;  a court does not lack jurisdiction simply because the charges are not supported by sufficient evidence to support a conviction.   Accordingly, we dismiss Hendrickson's PRP.

¶ 49 We affirm Hendrickson's convictions on Counts 12 and 18, reverse the conviction on Count 16 for ineffective assistance of counsel, and remand.

FOOTNOTES

1.   Hendrickson was a tow truck driver and several of the alleged victims testified that they were customers, Hendrickson had permission to have their financial information or to clean out their totaled vehicles, and they were not aware that any financial or identity crimes had been committed against them with the information that Hendrickson possessed.

2.   RAP 10.10.

3.   Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

4.   Hendrickson also frames this issue as one of prosecutorial misconduct for knowingly eliciting inadmissible hearsay testimony.   We do not address this claim because we dispose this issue on the ground of ineffective assistance of counsel.

FN5.  He attached to his PRP an arrest warrant for Christensen and asserted that the warrant proves that he is not Christensen.   But standing alone, the document does not support this argument..  FN5.  He attached to his PRP an arrest warrant for Christensen and asserted that the warrant proves that he is not Christensen.   But standing alone, the document does not support this argument.

FN6.  Hendrickson admitted during the suppression hearing that he had convictions for forgery, identity theft, and second degree theft..  FN6.  Hendrickson admitted during the suppression hearing that he had convictions for forgery, identity theft, and second degree theft.

FN7.  Other pages of Exhibit 4 contain similar “profiles” of other people, including names, birth dates, addresses, approximate height and weight, racial classification, driver's license and state identification numbers, social security numbers, credit card numbers and expiration dates, bank account numbers and bank names, and a telephone company account number..  FN7.  Other pages of Exhibit 4 contain similar “profiles” of other people, including names, birth dates, addresses, approximate height and weight, racial classification, driver's license and state identification numbers, social security numbers, credit card numbers and expiration dates, bank account numbers and bank names, and a telephone company account number.

FN8.  Hendrickson also argues that the prosecutor committed misconduct by charging him with the counts that the trial court later dismissed on a directed verdict.   Assuming, without holding that the charge was improper, the court directed a verdict in Hendrickson's favor and he did not suffer prejudice and cannot prevail on this ground.   See State v. Weber, 159 Wash.2d 252, 270, 149 P.3d 646 (2006) (ruling that to prove prosecutorial misconduct, the defendant must prove both improper conduct and prejudice)..  FN8.  Hendrickson also argues that the prosecutor committed misconduct by charging him with the counts that the trial court later dismissed on a directed verdict.   Assuming, without holding that the charge was improper, the court directed a verdict in Hendrickson's favor and he did not suffer prejudice and cannot prevail on this ground.   See State v. Weber, 159 Wash.2d 252, 270, 149 P.3d 646 (2006) (ruling that to prove prosecutorial misconduct, the defendant must prove both improper conduct and prejudice).

Quinn-Brintnall, J.